Can an illegally recorded phone call be used to form the basis of a prosecution? That's a question that is about to become very relevant following a bombshell revelation regarding the infamous phone call between Donald Trump and Georgia Secretary of State Brad Raffensperger.
On the call, Trump can be heard telling Raffensperger, "I just want to find 11,780 votes." That statement was one of the centerpieces of the former president's second impeachment. Was it definitive, though? In context, Trump had also asked Raffensperger to "find the fraud," indicating that he thought there were legitimate votes left to be uncovered.
Regardless, Fulton County DA Fani Willis used the phone call as the foundation for her RICO prosecution against Trump and his associates. According to a new book published by Michael Isikoff (who was an original pusher of the Russian collusion hoax), that call was illegally recorded by Jordan Fuchs.
Who is Fuchs? She is Raffensperger's Chief of Staff and has a very checkered history of political activism. Her hatred of Trump can be described as obsessive, and she was in Florida when she recorded the call in question. Why is that a problem? Because Florida is a two-party consent state.
Here's the quote from Isikoff's book, which Fuchs was a primary source for.
Fuchs has never talked publicly about her taping of the phone call; she learned, after the fact, that Florida where she was at the time is one of fifteen states that requires two-party consent for the taping of phone calls. A lawyer for Raffensperger’s office asked the January 6 committee not to call her as a witness for reasons the committee’s lawyers assumed were due to her potential legal exposure. The committee agreed. But when she was called before a Fulton County special grand jury convened by Fani Willis, she was granted immunity and confirmed the taping, according to three sources with direct knowledge of her testimony.
In other words, she broke the law because Trump did not give his consent to be recorded. In fact, according to Isikoff and his co-author, she didn't have Raffensperger's permission to record the call either. After the conversation concluded, Fuchs immediately leaked a copy of it to the Washington Post, and the rest is history, including Willis' use of it in her case.
To put a finer point on how corrupt this was, Fuchs was supposed to be a star witness for the January 6th committee, but Liz Cheney and others agreed to not call her to publicly testify to shield her from possible legal exposure. Raffensperger himself also played a big role in protecting her because it had become obvious Fuchs had committed a crime.
As Mollie Hemingway explains in her write-up on this revelation, this could put the entire case against Trump and his associates in jeopardy.
“Fruit of the poisonous trees is a doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained,” according to Cornell Law School’s Legal Information Institute. “As the metaphor suggests, if the evidential ‘tree’ is tainted, so is its ‘fruit.’ The doctrine was established in 1920 by the decision in Silverthorne Lumber Co. v. United States, and the phrase ‘fruit of the poisonous tree’ was coined by Justice Frankfurter in his 1939 opinion in Nardone v. United States. The rule typically bars even testimonial evidence resulting from excludable evidence, such as a confession.”
With Fani Willis repeatedly saying the entire investigation into Republicans was the result of a phone call that was illegally recorded, defendants might pursue legal recourse. It’s the latest challenge for Willis, even if the political ally judge reviewing whether she can continue prosecuting Georgia Republicans rules in her favor.
In short, if the investigation stemmed from illegally obtained evidence, not only could that evidence be inadmissible, but everything built from it could also be disqualified.
Of course, that's a lot easier said than done, and given the demonstrated bias of the judge overseeing the case (including what he's allowed Willis to get away with), there's little reason to believe such a game-changing moment is coming. Still, it is stunning to learn that the phone call that has been used to impeach and indict a former president was obtained illegally. Fuchs should be prosecuted for her crime. Whether that will happen is another matter entirely.